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Sunday, March 18, 2012

Another Brick Removed

Legal Insurrection

Our Bill of Rights is the foundation of our protections from government intrusion, a bastion of liberty unknown in most of the world. The essence of the Bill of Rights, what defines us as a nation and a citizenry, is captured by the First Amendment – freedom of religion, speech, press, assembly and petition.

This defensive fortification is under constant assault and must be protected at all costs or tyranny will reign. Without much fanfare, a law has been enacted that will greatly impact one’s ability to exercise many of their First Amendment rights and, thus, lose rights that many in this world only dream of having.

HR 347 was recently signed into law by President Obama. This statute had wide support amongst both parties of Congress. In essence, it criminalizes disruptive behavior upon government grounds, at specially designated national events (Super Bowl, nominating conventions, etc.) and anywhere that Secret Service is protecting “any” person. Obviously, the goal of this law is to enhance the ability of the Secret Service to protect those persons it is charged to do so; but in extending this power, this law eviscerates the citizens’ rights to assemble and petition under the First Amendment.

The major flaw in this law is it vests too much discretion with the executive branch – Secret Service – in cordoning off public venues in order to carry out their protective services function. Ignore their dictates and become a criminal. This expanded authority will eventually run afoul of the First Amendment; the question remains if the First Amendment will be protected by the courts.

Although this new law will most assuredly allow the Secret Service to disrupt those people intent on causing harm, the law will also impact those who are peaceably protesting and that is the major problem with the law, it casts to broad a net. When we are dealing with fundamental rights such as those guaranteed in the First Amendment, in order for the government to regulate this conduct, the law must be narrowly tailored for a compelling reason (strict scrutiny). Most laws in this area fail because not only does it outlaw the illegal behavior (think obscenity) but it also impacts constitutionally protected activity (think of art work such as nude paintings). HR 347 will impact people’s right to protest.